The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Conservation (Natural Habitats, &c.) Regulations 1994 (“the 1994 Regulations”), which make provision implementing Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna (“the Habitats Directive”) (O.J. No. L206, 22.07.92, p.7). These Regulations generally extend only to England and Wales, and, in so far as they amend the 1994 Regulations in relation to England and Wales, corresponding amendments to the 1994 Regulations have been made in respect of Scotland by S.S.I. 2007/80. These Regulations make certain amendments, however, which extend to Scotland as well as to England and Wales; and certain other amendments which only extend to Scotland.

The definitions of “the Habitats Directive” and “the Wild Birds Directive” in regulation 2(1) of the 1994 Regulations are amended. References in the 1994 Regulations to the annexes to the Habitats Directive are now ambulatory.

Regulation 2(1) is also amended to include a definition of “European offshore marine site” and there are related amendments in regulations 5(22) to 5(54) which, amongst other things, insert references to European offshore marine sites and provide for the Joint Nature Conservation Committee to be consulted where such sites are involved. These amendments ensure that Part IV of the 1994 Regulations (and Part IVA as it applies to Scotland) apply in respect of certain plans and projects that are likely to have an adverse effect on a European offshore marine site. The effects of plans and projects that are carried out on or in the offshore marine area or on or in relation to an offshore marine installation are governed by the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007. Regulation 2(1) of the 1994 Regulations is amended to include related definitions.

Regulation 5 of the 1994 Regulations is amended so that National Park authorities become relevant authorities in relation to marine areas and European marine sites.

Regulation 5(8) substitutes a new regulation 9, which specifies the status of a site that has been omitted from the national list and which has subsequently been the subject of an agreement between the Secretary of State and the European Commission, following a consultation process, or the subject of a decision of the Council of the European Communities, in each case pursuant to Article 5 of the Habitats Directive.

Regulation 5(9) amends the definition of “European site” so that the provisions in the 1994 Regulations relating to European sites apply in relation to all sites in Great Britain in the list sent to the European Commission under Article 4(1) of the Habitats Directive (and not just such sites in England). Regulation 5(10) makes an amendment requiring such sites in Wales to be registered under regulation 11 of the 1994 Regulations.

Regulation 5(12) inserts new regulations 37A to 37E into the 1994 Regulations. New regulations 37A and 37B impose, amongst other things, duties on the Secretary of State and the Welsh Ministers to make arrangements for surveillance of the conservation status of natural habitat types of Community interest and species of Community interest and to take action in the light of that surveillance. Similarly, regulation 5(16) inserts new regulations 41A and 41B creating duties to make arrangements to monitor the incidental capture and killing of animals of the species listed in Annex IV(a) to the Habitats Directive and to take conservation measures in the light of that monitoring.

New regulation 37C makes it an offence for any person on board a ship to introduce into territorial waters any live animal or plant that is not native to Great Britain. New regulation 37D provides for licences to be granted in respect of such introductions, and new regulation 37E creates an offence of knowingly or recklessly furnishing false information for the purposes of obtaining such a licence.

Regulation 5(13) replaces regulation 39 of the 1994 Regulations. The principal changes here are as follows:

(a)

it is made an offence deliberately to injure a European protected species of animal, and the offence in regulation 39(1)(b) of deliberately disturbing a European protected species of animal is refined;

(b)

regulation 39(2) of the 1994 Regulations is also amended so that the offences there relate to all of the protected species or subspecies of animal listed in Annex IV(a) to the Habitats Directive (as opposed to native species only); and a similar change is made by regulation 5(17) (which replaces regulation 43) so that all Annex II(b) and IV(b) plants (other than bryophytes) are covered in the offence in regulation 43(2);

(c)

new defences are set out in regulations 39(5), 39(8) and 43(7);

(d)

new regulation 39(17) provides that, in sentencing for the offence of damaging or destroying a breeding site or resting place, a court is to have particular regard to whether the offence could have reasonably been avoided.

Regulation 5(14) substitutes a new regulation 40. The principal changes here are that the pre-existing defences in regulation 40 of the 1994 Regulations (with the exception of those relating to mercy killing and tending injured animals) are removed. New defences are provided relating to action taken for investigating etc offences under Part 3 of the 1994 Regulations and certain other enactments. The new regulation 43 (which is substituted by regulation 5(17)) also contains similar defences to offences relating to plants.

Regulation 5(15) amends regulation 41 of the 1994 Regulations to make it an offence to use any indiscriminate means of capturing or killing an animal of the species protected by regulation 41, which is capable of causing the local disappearance of, or serious disturbance to, such species.

Regulation 5(18) provides a new power to grant licences under regulation 44 of the 1994 Regulations for the taking or keeping of animals or plants of a European protected species under strictly supervised conditions.

Regulation 5(21) creates a new offence of breaching a licence condition.

Regulation 49(2)(b) of the 1994 Regulations is amended by regulation 5(24) to provide that, in the determination of whether there are imperative reasons of overriding public interest justifying a plan or project, the opinion of the European Commission is a matter to which the competent authority must have regard.

Regulation 5(48) inserts new regulation 84B into the 1994 Regulations so that certain authorisations under the Water Industry Act 1991 and the Water Resources Act 1991 are covered by Part IV.

Regulation 5(55) inserts a new Part IVA (appropriate assessments for land use plans) into the 1994 Regulations, containing new regulations 85A to 85E.

New regulation 85A provides that Part IVA extends to England and Wales only and defines “land-use plan” and “plan-making authority”.

A plan-making authority must consider whether their land-use plan is likely to have a significant effect on a European site in Great Britain or a European offshore marine site. If any significant effect is not directly connected with or necessary to the management of the site, an appropriate assessment must be made of the implications for the site in view of that site's conservation objectives, undertaking any necessary consultation (new regulation 85B).

The plan-making authority is to give effect to the plan only after having ascertained that it will not adversely affect the integrity of the site (new regulation 85B(4)), unless they are satisfied that there are no alternative solutions and there are imperative reasons of overriding public interest as set out in new regulation 85C.

Where a plan-making authority propose to give effect to a plan notwithstanding a negative assessment, they must notify, in England, the Secretary of State or, in Wales, the Welsh Ministers (new regulation 85C(8)). The subsequent procedure is set out in new regulation 85C(9) and (10).

New regulation 85D provides for co-ordination where two or more local planning authorities prepare a joint local development document under section 28 of the Planning and Compulsory Act 2004.

In the event of a plan being given effect despite a negative assessment for reasons of overriding public interest, new regulation 85E requires that any necessary compensatory measures are to be taken to ensure that the overall coherence of Natura 2000 is protected.

Regulations 5(57) to 5(59) make amendments changing how the offences under Part 3 of the 1994 Regulations are to be enforced. For example, the powers of constables are extended to so that samples can be taken. Provision is made for the appointment of wildlife inspectors and they are given powers to investigate offences and whether licence conditions are being met. Finally, the time limit for bringing summary proceedings under regulation 102(1) is extended to cover all Part III offences.

Regulation 5(60) deals with application of criminal offences under Part III of the 1994 Regulations in relation to the Crown.

Regulation 6 amends section 10 of the Conservation of Seals Act 1970 to make it clear that there are other restrictions under the Habitats Directive on methods of killing or taking seals.

Regulations 7(7) and 7(8) respectively amend Schedules 5 and 8 to the Wildlife and Countryside Act 1981 to remove certain species from the protection given by sections 9(1), (2) and 13(1), and part of the protection provided under section 9(4), of that Act. Sections 9(1), (2) and (4) of the Wildlife and Countryside Act 1981 prohibit the killing, injuring and taking, possession and control and (in certain circumstances) disturbance of certain animals and protect their places of shelter and protection. Section 13(1) prohibits the uprooting of protected plants and, in some cases, also picking and destruction.

Regulation 7(6) updates the references to the Wild Birds Directive in the Wildlife and Countryside Act 1981 so that the Act refers to that Directive as last amended on the date these Regulations are made.

A number of other minor or consequential amendments are made, as well as a transitional provision, in regulation 9, relating to offences in regulation 39(2)(a) and 43(2)(a) of the 1994 Regulations.

A full Regulatory Impact Assessment of the effect that this instrument will have on the costs of business and the voluntary sector has been prepared in respect of these Regulations. A transposition note setting out how the amendments transpose the provisions of the Habitats Directive has also been prepared. Copies of both documents are available from the Wildlife Habitats and Biodiversity Division, Defra, Temple Quay, Bristol, BS1 6EB. In addition, copies of these documents have been placed in the libraries of both Houses of Parliament.